Procedural Rules and Competent Court in the Crime of Stalking (Turkish Penal Code Article 123/A)

Summary: Stalking (Turkish Penal Code Article 123/A) is subject to complaint, falls within the scope of mediation, and, as a rule, of the Criminal Court of First Instance . In the basic type (6 months–2 years), simplified proceedings are applicable if the conditions for such proceedings exist; in the aggravated type (1–3 years), simplified proceedings are not possible. Jurisdiction is determined by the location where the acts were committed and the resulting consequences (serious disturbance/security concerns); in cases involving crimes committed via information technology, the victim's location is also a strong jurisdictional factor.

1) Initiation of investigation and complaint requirement

Stalking is a crime that, by law, is subject to complaint . The victim must exercise their right to complain within six months of learning of the act and the perpetrator . The public prosecutor initiates an investigation upon receiving the complaint; withdrawal of the complaint may result in the dismissal of the case during the investigation or prosecution phase. During the investigation phase, the prosecutor's office collects evidence; HTS/cell phone records, message-email-DM content, screenshots, camera footage, protective orders and notifications under Law No. 6284, witness testimonies, and psychological impact reports are critically important evidentiary tools.

2) Mediation (mandatory stage)

Crimes are subject to mediation under Article 253 of the Code of Criminal Procedure . Before initiating prosecution, the prosecutor's office sends the file to the mediation office. If mediation is reached, a public prosecution is not initiated and the case is closed; if not, an indictment is prepared. In practice, for the safety of the victim, it is preferred that the parties communicate only through a mediator, without direct contact ; meaningful actions/commitments (ceasing communication, participation in programs, apologies, reasonable contributions) are taken into consideration.

3) Prosecution and trial procedure

• Competent court: As the maximum sentence is 2 years for the basic form of the crime and 3 years for the aggravated form, the Magistrates' Criminal Court is generally competent.

• More serious crimes committed together include: stalking, threats (Turkish Penal Code Article 106), insult (Turkish Penal Code Article 125), disturbing the peace and tranquility of individuals (Turkish Penal Code Article 123), violation of the confidentiality of communication/private life (Turkish Penal Code Articles 132-134), and deprivation of liberty (Turkish Penal Code Article 109). the jurisdiction passes to the High Criminal Court due to the more serious crime, the files combined and heard in the High Criminal Court; otherwise, the jurisdiction under Article 123/A remains with the Criminal Court of First Instance.

• Competent court: As a general rule of the Code of Criminal Procedure, the court of the place where the crime was committed has jurisdiction. Persistent stalking has a continuous and multi-local structure in most cases; in enforcement via communication/information technology, the location of the victim (where the consequences are predominantly felt) and the location of the last act are strong jurisdictional links in practice. Objections to jurisdiction must be raised within the initial objection period

• Simplified trial (Article 251 of the Code of Criminal Procedure): Only for basic type cases (upper limit 2 years), if the conditions are met, the Criminal Court of First Instance may conduct a simplified trial . In this procedure, a judgment can be rendered without a hearing; if the defendant/plaintiff objects, the case reverts to a trial with an extended hearing . Simplified trial cannot be applied to aggravated type cases (upper limit 3 years) .

• Expedited trial: Article 123/A is not applicable as it is not included in the expedited trial catalog .

• Protective measures: Depending on the evidence and proportionality , arrest and judicial control are possible ; although the upper limit is low, detention is theoretically possible if there is a risk of escape/disappearance and a concrete necessity. Independent of criminal proceedings, protective and preventive measures such as restraining orders/communication bans/prohibition from approaching residences, schools, and workplaces are requested from the Family Court within the framework of Law No. 6284 and proceed in parallel with the criminal case

4) Content of the trial: proof of typicality and causality

Court;

• Persistence threshold (number-duration-intensity),

• The consequence (serious disturbance or security concern) and the causal link between this and the perpetrator's behavior,

• Intent (predicting and accepting it with the least probable level of intent),

• The court evaluates the aggravating circumstances (violation of Article 6284/criminal measure against a child/spouse/divorced spouse, changes/abandonment of school/work/residence of the victim) with concrete evidence. The integrity of the chain of digital evidence (date and time stamps, IP/IMSI data, message and call logs) and concrete changes in the victim's life (address/school/work change documents, psychological reports) are decisive.
  

5) Assembly and merging

If the same actions also meet the typical criteria of threat-insult, etc., then the concept of intellectual concurrence (Turkish Penal Code Article 44) is discussed; if the actions are directed at different times and for different legal interests, then each is punished independently under the principle of real concurrence . Violations of the measures under Law 6284 trigger aggravated circumstances and may also bring about coercive imprisonment/separate criminal regimes. To ensure procedural efficiency and prevent contradictory decisions, the consolidation of related files is requested.

6) Individualization and decision-making

When a verdict is reached, the court determines the prison sentence within upper and lower limits according to the severity of the crime

• Conversion to a fine (Turkish Penal Code Article 50): the resulting imprisonment one year or less , the judge may convert it if deemed appropriate (this is more common in basic types of cases).

• Suspension of sentence (Turkish Penal Code Article 51) and conditional suspension of sentence (Turkish Code of Criminal Procedure Article 231): the resulting imprisonment 2 years or less and the conditions are met. Since aggravated sentences often exceed 2 years, these institutions with more caution .

• Deprivation of rights and security measures: Deprivation of rights under Article 53 of the Turkish Penal Code; confiscation may be considered for devices that have lost their evidentiary value. Measures under Law No. 6284 are continued/renewed independently of the verdict

7) Appeals, cassation, and victims' rights

Criminal court decisions are subject to appeal ; in cases exceeding certain limits, the right to appeal to the Supreme Court is available. The victim, in their capacity as a participant, may object to the suspended sentence , request the continuation/expansion of protective measures , and demand that the sentence be imposed at the upper limit ; in case of violation, they may request the announcement of the suspended sentence or the annulment of the deferment .

Conclusion

• Competent court: As a rule, the Magistrates' Court; if combined with more serious offenses, the High Criminal Court.

• Jurisdiction: The place where the act was committed + the place where the consequences were felt/the victim was located (especially in cases involving cybercrime).

• Procedure: Dependent on complaint, mandatory mediation, simplified trial possible for basic type proceedings, not for qualified type proceedings.

• Protection: In addition to criminal proceedings, measures under Law No. 6284 must be requested, and swift sanctions must be applied in case of violation.

                                                                                                                                  Ada Ceren KENDİGELEN